CONTESTED ELECTION 


SIL^VS L. KTIBL^NCIv 


VS. 


JOSI^H T. W^T_.LS, 




ARGUMENT FOR CONTESTANT. 


BY GEORGE W. PASCHAL. 


ATTORNEY FOR NIBLACK. 


WASHINGTON, D. C.: 

m’GILL & WITHEROW, PRINTERS AND STEREOTYPERS. 

1872. 

















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Contested Election from Florida. 


Silas L. Niblack "j 
vs, [> 

JosiAH T. Walls. J 


The contestant makes the following points: 

I. He herewith prints a tabular statement of the returns 
on which the State canvassers gave the certificate of elec¬ 
tion to Mr, Walls, the sitting member: 


Santa Kosa~. 
Walton — 
Escambia 

Jackson- 

Holmes- 

Washington 
Franklin — 

Gadsden- 

Liberty- 

Wakulla- 

Leon- 

Jefferson- 

Madison- 

Hamilton --- 

Alachua- 

Levy- 

Columbia- 

Bradford- 

Clay-l- 

Baker- 

Nassau- 

St. John’s-— 


Niblack. 

Walls. 

314 

246 

395 

27 

439 

568 

874 

878 

193 

6 

270 


134 

81 

837 

846 

134 

66 

301 

178 

562 

1,543 

546 

1,374 

625 

1,239 

430 

130 

694 

1,281 

315 

86 

694 

487 

458 

143 

187 

47 

176 

36 

369 

510 

339 

183 





























2 



Niblack. 

Walls. 

Putnam-- 

_ 193 

229 

Duval--- 

_ 4n 

898 

Marion --- 

_ 377 

1,058 

Orange- 

...._ 324 

17 

Volusia- 

___ 184 

63 

Hillsboro’_ 

__ 373 

87 

Hernando- 

_ 318 

132 

Polk___ 

_ 284 



11,810 12,439 

Making the majority for Walls 629 votes. But to arrive 
at this result the State canvassers rejected the following 
county returns: 

Niblack. Walls. 


La Fayette -- 

Su wan nee- 

Taylor- 

Calhoun- 

Sumter- 

Manatee- 

Brevard- 

Monroe- 


152 


318 

230 

177 


101 

62 

314 

60 

153 


30 

3 

359 

428 

1,604 

783 


Add these respectively to each candidate’s column, and 
they give Mr. Niblack a majority of 192 votes, by the rec¬ 
ord. Thus stood the record ujDon the case as it was orig¬ 
inally made by proofs from the State department, and as 
it remained here for over a year, (except as to Monroe countj^, 
which has since been proved by the sitting member.) Upon 
the motion of the sitting member the case was reopened, 
and the new proofs have gone behind the returns in the 
State department of Florida and they show that in La 
Fayette county the county canvassers excluded from their 
return the precincts of Cook’s Hammock, California, and 
Governor’s Hill. And the evidence positively shows that 
at Cook’s Hammock precinct Niblack received 16 votes, at 


^UG 17 1907 

D.ofD.* 






















3 


California precinct 18, and at Governor’s Hill 34 votes--- 
^ 68. But from this total deduct 42 votes, which some of the 

witnesses state that Walls received in La Fayette county, 
though they do not say at what precinct, and it leaves 26 
votes to he added to Mr. Niblack’s majority. 

In Manatee county, it is proved in the original testimony, 
(small pamphlet, p. 14,) that at Fort Ogden precinct, which 
was rejected by the county canvassers, Niblack received 39 
votes, all that were cast. In Duval county, Mayport and 
Baldwin precincts were rejected by the county canvassers. 
The proof shows that at Mayport precinct Niblack received 
30 votes. Walls 7, (large pamphlet, pp. 2 and 8;) at Bald¬ 
win precinct Niblack received 30 votes and Walls 4 votes, 
(large pamphlet, pp. 4-6)—making a majority of 306 votes 
for Mr. Niblack. 

II. As there is no pretext that Mr. Niblack recieved any 
illegal vote; or that there was any fraudulent count in his 
favor; or that there was any reason for rejecting any vote 
cast for him, save the various technicalities, which cannot 
control this committee, in the better days of the Kepublic 
nothing would have remained for this committee but to re¬ 
port that Mr. Niblack was duly elected. 

As to any objections to the form of returns, the statute 
has always regarded them as only directory; and it has 
ever been held, that the people could not be deprived of 
their election by the mere informalities, ignorance, or ne¬ 
glect of their election officers. 

The practice is liberal in regard to the personal rights of 
contestants and the constitutional rights of constituencies, 
(Wright V. Fuller, 2 Contested Elections, 154; Daily v. 
Eastbrook, Id., 304.) For '‘each house is to judge of the 
elections, returns, and qualifications of its own members,” 
and no previous House and Senate (much less the canvass¬ 
ing officers of the State or States, themselves) can judge 
for them, (Williamson v. Sickles, 2 Contested Elections, 
290.) The rights of the electors should not be compromitted 
for the laches, if any exist, for which they are not responsi- 


4 


ble. It is more important that their voice should have ex¬ 
pression in the House, through their lawfully elected Rep- ^ 
resentative, than that this or that man should enjoy the 
emoluments of office, (Id., 290.) It is a great public injury 
where the voters of the district are the real parties, (Yal- 
landigham v. Campbell, 26 Contested Elections, 230.) 
The question is not what the parties or the officers have 
done or omitted to do, hut what was the expressed wish of 
the people of Florida at the polls, (Chapman v. Ferguson, 

2 Contested Elections, 230; Wallace v. Simpson, Digest 
of Election Cases, 556.) There is here no element of the 
fraud which brings the case within the Pennsylvania rule, 
adopted in Covode v. Foster. (Digest of Election Cases, 
602, 603.) 

Some of the reasons upon which the State canvassers re¬ 
jected county returns are inexcusable. The law of Florida 
requires the returns to he made in duplicate—one directed 
to the Secretary of State and one to the Governor. Printed 
forms seem to have been furnished by the State department 
to the county officers. 

In Suwanee county the only objection urged is that the 
caavassers skipped the ‘^witness our hands and seals,” &c., 
which had been printed, and after adding the vote for 
Lieutenant Governor wrote the same form and signed it, 
(small pamphlet, pp. 7, 8.) But even this objection did 
not exist to the certificate forwarded to the Governor, (p. 8 ;) 
for to that the officers signed at the place intended for their 
signatures in the printed form. It was further objected, 
however, that while both certificates were signed by the 
county judge and clerk, one had superadded the name of 
the sheriff, and the other the name of a justice of the peace. 
Neither objection could prejudice the return. These and 
all such technical objections clearly come vvithin the rules 
agreed to on both sides in the case of Covode v. Foster, 
(Digest of Contested Elections, p. 614.) The disregard 
of mainly directory provisions cannot annul an election 
carried on with all the essentials of an election.” 

In Taylor county there is no objection to the form; but 


5 


it is said that one of the certificates was signed by Wilder, 
the sheriff, and the other by Wilcox, his deputy. While 
in Calhoun county only the judge and clerk signed. If 
the absence of the name of a certifying ofiicer was fatal, then 
the whole State canvass would be vitiated, for Mr. Gamble, 
the comptroller, refused to join in the certificate of election 
because his associates were influenced by these technicalities. 
(Small pamphlet, p. 16.) 

I am unable to see what objection could he urged to the 
certificates from Sumter counter, or to those from Manatee 
county. Whatever they are,, they are purely technical, and 
such as cannot influence this committee. 

In Brevard county the county judge seems alone to have 
certified; but that is no sufficient objection, particularly as 
there was no pretext that the votes were not cast. 

III. The sitting member says that, although the votes 
are as shown by the records and the proofs, which facts are 
admitted seriatim in the answer and technicalities urged 
against them, yet he insists that there were such intimida¬ 
tion and illegal voting as should prevent Congress from 
giving the usual force to majorities. 

It is well to examine, with some care, the answer. It is 
urged that there was illegal voting at Yellow Bluff, May- 
port, and Baldwin precincts, in Duval county, and objec¬ 
tions were made to the manner of certifying the returns 
from that county, of which we hear no more. 

It is also urged, (fifth, p. 3,) that at Underwood’s pre¬ 
cinct, Jackson county, violence and intimidation were com¬ 
mitted, ‘Svhereby four hundred registered voters, who were 
intent upon going to Mariana for the purpose of voting in 
behalf of my election, were obliged to return by the way,’' 
&c. “ I shall therefore ash for the rejection of the votes of 

said county.” As this county gave Mr. Walls a majority, 
Mr. Niblack cannot object to this prayer. 

There is no one specification in the answer which is made 
with sufficient particularity and definiteness to admit proof 
of illegal voting, or of any particular intimidation and 


fraud. The rule is, that the things intended to be proved 
should be stated with such certainty as to give his opponent 
reasonable notice, and to enable the House to judge whether 
the facts, if true, be sufficient to vacate the seat, or to es¬ 
tablish the right to retain it. (Lieb’s case, 1 Contested 
Elections, 165; Eastwood v. Scott, 2 Cent. EL, 272; Kline 
V. Verree, Bartlett’s Cont. EL, 381; Delano v. Morgan, 
Digest of Elections, 177.) 

In this latter case Mr. Dawes defines the answer of Wall 
well: ‘Wou were not elected; I was.’' ‘Won did; I 
didn’t.” will prove intimidation,” &c. (p.,177.) The 
rule of Mr. Dawes goes further, and upon exhaustive au¬ 
thorities it is shown that the contest mast be in accordance 
with the law, and upon grounds known to the law. (Ib., 
178 .) 

It is to be observed that the charge of violence and in¬ 
timidation is nowhere pretended to be specific except in 
Jackson county; and there it is not alleged by whom or by 
what political party such intimidation was practiced, nor 
indeed upon whom it was practiced. And if such a fact be 
legal cause, which we deny, we object that upon such a 
general charge any proof could be admitted. Passing from 
the general charge to the proofs, we find some efforts to 
prove that persons failed to vote at Lake City, in Columbia 
county, concerning which nothing was said in the answer. 
This proof, in general terms, is to the effect that there was 
a Republican meeting held at Lake City on the night before 
the election ; that sentinels were placed around the meeting 
with guns in their hands, and democrats excluded from at¬ 
tending; that after the meeting was over, and after most 
people had gone to bed, the negroes marched in procession, 
armed with guns and pistols, acting in a very disorderly 
manner, and in passing near a hotel or store, where there 
were a few democrats, they came in contact with a few 
white men, and a scuffle ensued between one colored man 
and a white man. The white man seems to have been de¬ 
fenseless; the colored man clubbed his gun and struck at 


7 


him twice, and was prevented from doing further mischief 
by the sheriff, (large pamphlet, pp. 18-30.) 

I do not see that there is any evidence that any one was 
prevented from voting the next day, and all the witnesses 
agree that the riot, such as it was, was attributed to the 
drunkenness of the colored people; that they were greatly 
superior in numbers ; and that if any persons were put in 
terror it was the whites. 

In Jackson county, at Mariana, there seems to have been 
some violence on the part of police officers in their efforts 
to make room for voters; and it seems that a Mr. Coker 
and a colored man called Jerry Robinson, had a difficulty; 
that Coker drew his pistol, and was disarmed by James 
Baker; that about the same time Dr. Tennell slapped Rob¬ 
inson in the mouth, and used disorderly language. 

The witnesses say that this disturbance, and the fact that 
the polls were closed shortly before sunset, caused from fifty 
to one hundred and fifty colored men to leave without 
voting. (Pp. 38, 52.) 

At a place called Long’s Bottom, on the road to Mariana, 
on the night before the election, a party of voters were 
halted by unknown persons, fired into, and consequently 
three or four turned back and did not attend the election; 
the others, somewhere near forty, seem to have gone to 
Mariana, and, for aught that appears, voted. (Pp. 52, 55.) 

Taking all that has been proved in Jackson county, after 
so long a time it cannot be reasonably inferred that exceed¬ 
ing one hundred or one hundred and fifty persons were 
prevented from voting by all causes combined. The dis¬ 
turbance at Long’s Bottom has not been traced to any 
political parties, or shown to have produced any serious 
effect. The ill-temper shown by Coker and his drawing a 
pistol seem to have been a matter of sudden heat, and he 
was immediately disarmed by Baker, of his own political 
party. 

Dr. Tennell’s intemperance seems to have been without 
concert with any other person, and was confined to a quarrel 
with Robinson and one other colored man. The closing the 


8 


polls before sundown is hardly sustained. The election 
officers we’re Republicans, and the act about which there is 
contradiction can by no means be attributed to the Democratic 
candidate or his friends. There is certainly no proof that all 
these things combined excluded such a number of Republican 
voters as would have changed the result. It is respectfully 
submitted that it would be a very dangerous precedent to 
hold, that acts of violence by two persons, only at a single 
election precinct, where the vote was about a tie, the com¬ 
plaining candidate in fact receiving a majority, should 
defeat the express will of the people of the whole State. 
And I maintain that it is unsafe to the Republic to declare 
a man elected if he has not been elected. If it can be 
shown that he was defeated by votes cast by persons not 
qualified to cast them, or by the false count of returning 
officers, or by frauds, whereby persons were cheated out of 
tickets which the voters intended to deposit, it would be in 
the power of the House to correct the error upon clear 
proofs, and either to order a new election or to declare in 
favor of the actual choice of the qualified electors. (See 
the doctrine stated in Washburn v. Voorhees, Digest of 
Election Cases, 38.) 

Or if the person receiving the highest number of votes 
possess not the constitutional qualifications, then the elec¬ 
tion may be referred back to the people. But certainly it 
is dangerous to assume that he who is defeated for want of 
votes may yet be declared elected, because somebody, some¬ 
where, did something, said something, or intended some¬ 
thing, which frightened some other persons from voting. 
And the absurdity is increased when the persons thus 
frightened are not produced; but we are asked to assume 
that the color of the frightened may determine how the 
frightened would have voted; that their numbers may be de¬ 
termined by the general assumption of witnesses after a 
long time; the witnesses estimating all who left there who 
had voted as well as those who had not, and none of these 
persons being produced as witnesses. The principle, how¬ 
ever guarded, is dangerous to the principle of popular elec- 


9 


tions. As applied to this case, it would be a most mis¬ 
chievous precedent. 

And it would allow the minority principle, which has 
been expressly denied in very heated times. (Smith v. 
Brown, Digest ol Elections, 395, 401; Blakey v. Golladay, 
id., 417; Jones v. Mann, id., 476.) 

Whatever may be the right, the remedy has never been 
extended further than to reject the obnoxious precinct 
altogether, and to determine the result upon the votes free 
from objection. (Washburn v. Voorhees, Contested Election 
Cases, 58; Giddings v. Clark, at this session.) 

IV. There is nothing in the laws of Florida which gives 
any right to the State canvassers to exclude votes because 
of intimidation or violence. Hence the rule, upon the prima 
'facie case of Giddings v. Clark, at the present session, which 
was based upon the Texas law, which gives such a discre¬ 
tion, can have no effect Ixere. The law of Florida being 
silent upon the subject, no complaint having been made at 
the time, and the canvassers having counted the votes and 
declared the majority for the sitting member, the naked 
question is, whether or not, after so long a time, without 
previous notice, in the face of the statement of the United 
States marshal that the election was fair and orderly, 
fugitive and contradictory statements of witnesses can be 
received, not to prove known facts, but supposed proba¬ 
bilities ; not to defeat the vote of the supposed disorderly 
precinct, but to superadd to the sitting member’s majority. 
Certainly this principle cannot be tolerated. 

But I insist, since the passage of the act of May 31, 1870J 
^Go enforce the civil rights of citizens of the United States 
to vote in the several States of the Union,” &c., the sub¬ 
ject is taken from the States and remitted to the federal 
judiciary; and the punishments and remedies are to be 
found in that act, and not in general principles or the laws 
of the State. This act (§ 2) provides for the punishment 
of those who refuse to allow any registration. (16 Stat., p, 
140.) 


10 


The 3d ^section makes an honest effort to perform equiv¬ 
alent to the performancej and punishes the officers who re¬ 
fuse to give effect to the effort. 

The 4th section provides a severe penalty for obstructing 
the efforts to qualify as voters. And section 5 provides that_, 
‘‘if any person shall prevent, hinder, control, or intimi¬ 
date, or shall attempt to hinder, control, or intimidate, 
any person from exercising, &c., the right of suffrage,'’ 
he shall he guilty of a misdemeanor and punished, &c. 
Other sections, giving full effect to these penalties, follow. 
But there is nowhere any intimation that for these causes, 
or any other causes, the votes actually cast shall not be 
counted, or that those intimidated from voting shall he su- 
peradded. 

The security is in the legal punishments, not in the de¬ 
feat of elections. In this case there are no facts which* 
admit of enlarged discussion. 

Respectfully submitted. 

Gteorge W. Paschal, 

For Contestant. 


SUPPLEMENTAL ARGUMENT. 


IV. Although the election was held at an improper place, 
and persons were grossly and violently assailed by the friends 
of the sitting member, and by such means were intimidated and 
entirely prevented from voting, yet the committee cannot for 
such reasons recommend the throwing out of the whole vote 
of such precinct. (Chaves v. Clever, Digest Contested Elec¬ 
tion Cases, 468.) 

In Sypher v. St. Martin, (Digest of Contested Election 
Cases, 700, 703,) the rule adopted was to exclude all the par¬ 
ishes only where murderous intimidation prevailed, and to 
count the peaceable parishes,” one of which was less peace¬ 
able than any precinct in Florida. By this process three 
hundred and fifty-six majority was ciphered out for Sypher, 
and the committee recommended that he he seated. But the 
House refused to sustain this result; and, St. Martin being 
wanting in qualifications, the election was referred bach to 
the people. 

In Hunt V.. Sheldon, (Digest of Contested Elections, 703, 
706,) the terrible conspiracy against liberty, and the dark 
and bloody history of oppression and martydom which pre¬ 
ceded the election, where summed up by a graphic hand. 

It was thus shown that the bravest hearts were not only 
put into actual fear, but that their reasonable apprehensions 
justified the Republicans in resolving not to approach the 
polls. The language of the report is: ‘‘If it be said that 
there might not have been any violence, the answer is, that 
recent events had raised a reasonable apprehension of danger, 
sufficient in law to cause a man of ordinary prudence to so act 
as to avoid probable danger.” 

And again, reference is made to the rule in the reconstruc¬ 
tion law of 2d March, 1867, section 5, which declares that it 
shall appear that “all the registered qualified electors had 



12 


an opportunity to vote freely, and without restraint, fear, or 
the influence of fraud/' And while the committee inclined 
to\dopt this as declaratory of the law in contested elections, 
yet, in view of the fearful facts which might have alarmed 
every Republican in the State, the committee said: As to the 
remaining parishes in which it shall appear that the election 
was valid, it is proposed that returns therefrom, when prop¬ 
erly authenticated and proved, shall be counted, and the re¬ 
sult in the district determined from such returns." (p. 706.) 
In the further report of this case in the same volume, (pp. 707, 
711,) the facts are summed up, which show that the intimida¬ 
tion amounted to no less than war and the overthrow of civil 
government. And yet the rule was limited to the exclusion 
of the parishes where actual hostilities existed, and the count¬ 
ing of those where the voting could he done peaceably. 

If these precedents are to control this case, then the elec¬ 
tion must he declared in favor of the contestant; for, in every 
county where there is any pretense of violence, Mr. Walls 
received a majority of votes. 

But such precedents cannot control a case in which the facts 
are so difierent. There is here no pretense that there were 
secret societies, preconcert, or design to oppress any class of 
voters. There is no evidence that there was a heated canvass 
or party organization. The proof only extends to one night 
previous to the election. That proof is, that a Republican 
meeting was disorderly; hut there is no proof that there was 
any act of violence on the part of the whites. 

V. The efibrt to ^‘halt" some colored men at Long’s Bottom, 
is not traced to any color or class of politicians. It had no 
serious results. The little disturbance at Mariana was by two 
white men. And the fact that it was immediately put down 
by a voter of the same party ought to have given confldence. 

The estimate of the number of voters who left ought to be 
received with many grains of allowance. No man can deter¬ 
mine upon numbers without counting; and there is no proof 
of estimate, or determining how many of those leaving were 
of the 1,600 who voted in the county. 


13 


VI. In the printed argument sufficient notice has not been 
taken of the evidence concerning Duval county. In the notice 
of contest the contestant says: Third. That the county of 
Duval, Yellow Bluff precinct, which gave me a majority of one 
hundred and fifty-six (156) votes, and the precinct of May- 
port, which gave n^e a majority of 31 votes; and the precinct 
of Baldwin, which gave me a majority of 28 votes, were un¬ 
lawfully rejected by the Board of County Canvassers of said 
county.” This the contestant does not deny, but defends the 
exclusion, thereby admitting the truth of the vote, and as¬ 
serting the technicalities by which it was excluded. 

The contestant instructs me to say that this allegation is 
according to his best information; but he failed to prove it, 
as to Yellow Bluff, and therefore has not claimed it. 

G. W. Calder, the only inspector sworn, says that there were 
160 votes polled at this precinct, but he does not remember 
the proportion. (Large pamphlet, pp. 6, 7.) The contestee, 
doubtless, supposing that the votes had been proved as alleged, 
examined W. A. McLean, the county judge, who swore that 
this same George W. Calder handed the judge what purported 
to be a return, and upon its being opened, Calder denounced it 
as not being the return from the precinct; and further stated 
to me that he (Calder) was one of the inspectors at Yellow 
Bluff; that the whole number of votes polled at that pre¬ 
cinct was 164, and not 383, as handed to me by him.” But 
this witness does not annex the copy of the paper, nor state 
what was the proportion of the vote. 

W. R. Toombs, another of the inspectors, is dead; and Isa- 
dore Van Balsan has been convicted of a misdemeanor, for not 
making this return of Yellow Bluff precinct. McLean shows 
why the votes at Baldwin and Mayport precincts were not' 
counted. (Large pamphlet, pp. 110, 114.) 

While, then, the votes which Niblack actually received at 
the Yellow Bluff precinct are not claimed, because not proved. 
Walls can take no benefit from these frauds. All the election 
officers were directly and indirectly appointed by the Govern¬ 
or ; they were all Republicans; and therefore all tampering or 
illegality was intended to be to the prejudice of Niblack. 


14 


Another gross irregularity is to be noticed in this county, 
according to the evidence of Frank E. Little, one of the in¬ 
spectors. He swears that the polls were closed at Jackson¬ 
ville at 9 o’clock, p. m., which was three hours beyond the 
legal time. (Large pamphlet, p. 8.) The votes of hut two 
precincts were in fact counted in Duval county—one, and the 
principal one, this same Jackson. In this county of Duval 
Walls received 898 votes, and Hiblack 471 votes. If any county 
ought to be rejected it should be this one, as well for this night 
voting, when the same men might have voted a second or 
third time, as because Mr. Niblack’s precincts were excluded. 

VII. In the first brief we did not comment upon the contest ■ 
in Gadsden county. All the evidence in relation to intimida¬ 
tion in this county was illegal, and I ask that it be sup¬ 
pressed, upon the ground that it is neither mentioned in the 
contest nor in the answers. There was no issue in the alter¬ 
cations in regard to it; and therefore no evidence concerning 
it is properly admissible. And should this objection be over¬ 
ruled, the facts do not bring the case within any rule of law 
which can benefit the contestee. The vote of the county 
stood—for Niblack, 837; for Walls, 846. Mr. Walls thus re¬ 
ceived the highest vote, and of the fact that he did not re¬ 
ceive a greater majority he has never made any complaint. 
Yet, without any predicate for a contest, he summons 375 
witnesses and examined 35 of them. 34 of these were ex¬ 
amined to prove that they were intimidated from voting. Of 
these three swear that they were prevented because their 
names could not be found on the registration list; a majority 
of the others swear that the crowd was so great that they 
could not reach the polls; a very few were prevented from 
voting at the box wdiich the whites claimed by the violence of 
Governor Allison. 

There is a pretty general concurrence that there was some¬ 
thing of a fuss raised, by whom is not shown, about 3 o’clock ; 
but this was of short duration, and it could have had no more 
than the ordinary effect upon the few timid men to be found 
at every voting place. 


15 


M. L. Stearns (large pamphlet, p. 74) states that between 
the hours of 3 and 4, p. m., a line was formed, and a difficulty 
arose, owing to the pressure of persons trying to vote. Wea¬ 
pons were shown, hut none used. The difficulty lasted about 
half an hour, and it was the poll mostly occupied by the 
whites. This seems to have been* Governor Allison’s row, 
and it is shown to have prevented some half dozen colored 
men from reaching that poll. While this witness estimates 
that some two hundred persons were prevented from voting, 
he does not attribute it all to the half hour’s loss of time at a 
single poll. He says that some voters were challenged and 
time lost. And he says that only one could vote a minute, 
(and that is certainly true where registration papers have to 
he exhibited,) and allowing thirty minutes for the time lost, 
and only thirty persons were thus prevented from voting, (p. 
78.) This well corresponds with the actual number proved. 
For although 375 were summoned, only 34 were found to say 
that they did not vote; and some of these did not try, and very 
few profess to have been prevented by fear. And as on page 
91 the clerk of the court certifies to the registrations of the 
witnesses who failed to vote, and both the poll list and regis¬ 
tration list were with the same officer, the presumption is that 
they were compared, and no more non-voters could he found. 

The violence of Governor Allison was reprehensible, and 
for it he has justly been indicted under a very salutary law. 
Let the law take its course. But certainly it would he a very 
dangerous precedent to assume that, because of so slight a 
disturbance, late in the day, the force of the election in that 
whole city should be destroyed; or, what would be a more 
dangerous rule, that the persons proved not to have voted, 
from neglect or want of time, or want of perseverance, should 
be added to the list of one of the candidates. But should even 
this absurd rule be adopted as a precedent, those proved fail¬ 
ures could not change the result by 300 votes. 

We insist that the proofs in regard to this county cannot be 
considered, and that, if considered, they are really imma¬ 
terial. 


16 


VIII. The result of the entire election is, that it is proved 
that there were cast at this election 26,828 votes. The registered 
voters, under the reconstruction laws, were 26,692, of whom 
11,151 were whites and 15,541 blacks. (Paschal’s Annotated 
Constitution, p. 289.) But the census of 1870 shows no such 
disparity in races. The whole population, by the census of 
1870, was 187,748; whites, 96,067 ; colored, 91,689; Indians, 2. 

The deficiency in registration is explained by the fact that 
all ante helium office-holders were excluded from registration, 
and many others refused to register. Florida is not a State 
of increasing population. Its whole numbers in 1860 were 
140,425. The subsequent increase has been very small, as 
we have seen. Therefore, it is very apparent that the vote 
of 8th day of November, 18'iO, was a reasonably full vote ; 
and every inference is that the deficiency was on the part of 
the whites. 

I am happy to record my belief that this committee cannot 
allow itself to be controlled by merely political considerations. 
The majority, with myself, may regret to see political power 
being transferred from the few in that State who adhered to 
the Union in its dark hours, aided by that race to which the 
contestee belongs, to the dominant men who followed the 
the mad cause of secession. But we are to remember that 
emancipation and universal citizenship and suffrage were not 
the proximate causes, but only the fruits, of the struggle. 
The war was to maintain the freedom of elections and the will 
of the people constitutionally expressed at the polls. Upon 
this principle of suffrage rests the whole fabric of our Govern¬ 
ment. Against its free exercise and fair count no party can 
struggle. While we continue to give force and effect to the 
will of the people, thus freely expressed, none need despair of 
the Republic. But there never was a party so strong as to be 
able long to maintain the minority rule. 

It is not to be denied that this has been the effort in the 
reconstructed States. All their constitutions and perversions 
of constitutions have well-nigh robbed the people of the elec¬ 
tive principle as to all municipal government; long tenures 
have been adopted, and revolutionary expedients resorted to. 


17 


to maintain them; election laws have been contrived, which 
have enabled the canvassers to change the decision of the 
people; your criminal laws have been defied in giving certi¬ 
ficates to this body; legislators have been corrupted and 
States sold to greedy cormorants; and a class of men have 
been sent to this House who have brought disgrace upon the 
Kepuhlican party and the nation. 

It is for the House to apply the remedy as far as possible. 
Let it judge of the elections as decided by the people; not of 
what the elections might have been, in the opinion of irre¬ 
sponsible witnesses, upon loose examinations, without legal 
• issues. 

No party can live which is not just. 

Geo. W. Paschal, 

For Contestant. 


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